United States District Court, D. Colorado
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE.
a toxic tort suit alleging negligence liability under the
Federal Employers' Liability Act (“FELA”) and
failure to maintain adequate conditions pursuant to the
Locomotive Inspection Act (“LIA”). In short,
Plaintiff York-employed as a conductor/brakeman by Defendant
BNSF Railway Company (“BNSF”) from 1976 to
1991-alleges on-the-job exposure to various carcinogens, to
which he attributes his development of bladder cancer.
the Court are Defendant BNSF's Daubert motions
to exclude testimony by York's causation expert Dr. E.
Roy Berger (Berger Motion, ECF Nos. 52, 53) and liability
expert Michael Ellenbecker, Sc.D. (Ellenbecker Motion, ECF
Nos. 54, 55), to which York responded (Berger Response, ECF
Nos. 56, 57; Ellenbecker Response, ECF Nos. 58, 59). BNSF
replied to each response. (ECF Nos. 63, 64.) BNSF further
filed a motion for summary judgment, arguing in the
alternative that (1) without the testimony of his experts,
York has failed to mount a prima facie case; (2) even if
their testimony is not excluded, York's claims fail
because his experts have not offered evidence on necessary
elements; and (3) York filed this case beyond the three-year
statute of limitations deadline. (See generally SJ
Motion, ECF No. 61; see also SJ Reply, ECF No. 77.)
York responds by (1) agreeing that exclusion of Dr. Berger
would be fatal to his case (but maintains exclusion of
Ellenbecker is not); (2) arguing that, if included, the
expert's testimony would supply the facts necessary to
establish his case; and (3) contending that he filed within
the limitation period. (See generally SJ Response,
ECF No. 75.) The parties have requested a hearing on
BNSF's motions. (ECF Nos. 60, 65.)
Development of Cancer
York was a conductor/brakeman with BNSF from 1976 to 1991.
(Statement ¶ 4.) He filed this action on May 2, 2014,
alleging that occupational exposure to diesel exhaust
(benzene) and asbestos during his time with BNSF caused him
to develop bladder cancer. (Id. ¶¶ 1-3.)
Both FELA and LIA violations are alleged as based on
York's exposure to these dangerous or hazardous
chemicals. (Id. at 5-6.)
developed symptoms of edema of the torso (excess liquid) and
sought medical treatment on February 17, 2014, at which time
he underwent a series of tests, including urine analysis.
(Id. ¶ 7.) York returned to the doctor on April
3, 2014. (Id. ¶ 8.) At that time, York learned
that he had microscopic hematuria. (Id.) The doctor
“discussed with [York] the finding and significance of
hematuria, ” which included
GU malignancies, infection, kidney stones, benign tumors,
various congenital defects, medications such as blood
thinners, renal diseases, excessive exercise, prostate
enlargement urinary tract obstruction, injury, hematospermia,
and faux hematuria.
(Id.; ECF No. 76-5, at 5.) By then, York was
concerned that he had bladder cancer (Statement ¶ 9),
but he did not receive a positive diagnosis of the same until
May 14, 2014. (Id. ¶ 10.)
support of his claims, York disclosed two experts-Dr. Berger,
who is offered to provide an opinion on the cause of
York's bladder cancer, and Mr. Ellenbecker, who is
offered to opine on BNSF's liability. (Id.
¶¶ 12-13.) To support his opinion, Dr. Berger
performed approximately five hours of research on the effects
of diesel exhaust and asbestos. (Id. ¶ 14.) On
June 28, 2018, Dr. Berger produced a report with his findings
based on his review of “medical records on Roddy York .
. . [and] the current literature re: workplace health risk to
Mr. York.” (Berger Report, ECF No. 76-7, at 2.) Based
on the sources cited in the bibliography and a recitation of
notes from York's medical visits (none of which mention
diesel, exhaust, fumes, asbestos, any other carcinogenic
chemical, or even suggest that York has ever been in the
vicinity of a locomotive, freight car, or related building or
facility), Dr. Berger's report concludes:
York was exposed to diesel fuel, fumes and exhaust from
working on and around diesel locomotives on a daily basis.
Mr. York was also exposed to creosote from walking on
railroad ties while inspecting and making up trains. He was
exposed to asbestos located on and in the diesel locomotives
and brake shoes on the locomotives and freight cars as well
as pipe covering on the steam pipes in the building and
(Id. at 7.) This conclusion was drafted by
York's counsel, who supplied it to Dr. Berger for
inclusion in his report. (Berger Dep., 76-2, at 17:15-22.)
Other than the information quoted above and discussions with
counsel, Dr. Berger received no information whatsoever
concerning York or his work conditions from any other source.
He did not review York's work history documentation;
assess chemical testing records; speak with York; analyze
worksite conditions at BNSF; read the deposition transcripts
of York or any other witness in this case; or interview
anyone except York's counsel in forming his opinions.
(Id. at 17:23-19:12.) Moreover, Dr. Berger does not
plan to perform any additional work on this case.
(Id.) Finally, the report indicates that York's
father had colon and bladder cancer, and York smoked from his
mid-teens to 2016. (Berger Report at 5.)
deposition, Dr. Berger clarified that he was offering
causation opinions with respect to diesel exhaust and
asbestos only. (Berger Dep. at 20:9-13.) He testified that he
reviewed a study concluding that diesel exhaust and asbestos
are associated with bladder cancer but added that he had not
found a single study concluding that diesel exhaust
causes bladder cancer. (Statement ¶ 15.) Dr.
Berger could not testify to the specific doses of diesel
exhaust or asbestos to which York was exposed-if he was
exposed at all-while working for BNSF:
Q: Do you have any reason to believe that Mr. York received
exposures to diesel exhaust while inside the locomotive in
his job for the railroad?
A: Frequently they don't close the windows to the
locomotives especially when they're just sitting there
and not moving, but I can't quantitate his exposure. . .
Q: Did -- did Mr. York work with the windows open or closed
A: I don't know.
Q: -- you can't say, as we sit here today, that under the
circumstances alleged by Mr. York that he would have been
present to be exposed by the time those particulates fell to
a level of exposure of a person; fair?
A: I don't know the answer to that.
Q: Did you attempt to do an analysis of the level of
exposure, if any, of Mr. ...